

Standing Committee A

[Mr. Roger Gale in the Chair]

Equality Bill [Lords]

Clause 82 - General duty to promote equality, oposed [this day], That the clause stand part of the Bill.

Question again proposed.

Meg Munn: Welcome back, Mr. Gale. I was mid-paragraph, or even mid-sentence, so I shall go back to the beginning of that paragraph to create some consistency.
Creating a truly responsive public service means ensuring that public authorities are fully aware of the differing needs of their staff, customers or end-users, and building in robust mechanisms for them to respond to such needs at every level and in every aspect of their functions. At a higher level, we see that as a vital component of the culture change in the public sector. 
Clause 82 introduces a new section 76A in the Sex Discrimination Act 1975, which provides for a public sector duty to promote gender equality. The clause imposes a general statutory duty, as distinct from clause 83, which provides powers for the Secretary of State to impose specific duties on public authorities to assist them in achieving the general duty. 
In October, the Government issued a consultation document ''Advancing Equality for Men and Women: Government proposals to introduce a public sector duty to promote gender equality''—a snappy title—on those specific duties, requesting comments by 12 January 2006. A copy has been placed in the Library. The clause was amended in another place to bring an explicit reference to harassment into subsection (1). That took place on the back of the recent amendment of the Sex Discrimination Act 1975 through the implementation of the equal treatment amendment directive. The new provision will require all public authorities to have due regard to the need to eliminate unlawful sex discrimination and harassment when carrying out their functions, and to promote equality of opportunity between men and women. 
The general duty also ensures protection against contraventions or breaches to the terms of contractual pay and benefits as legislated for in the Equal Pay Act 1970. As the Committee is no doubt well aware, the gender pay gap still shows disadvantages for working women. 
The gender duty, which we intend to come into effect from 1 April 2007, will apply to any person who carries out a public function. That definition is deliberately wide and accords with similar definitions utilised in the general duties for both race and disability equality. The duty will apply to easily  recognisable public bodies such as Departments, local authorities and national health service trusts. Private sector bodies that provide services on behalf of a public authority, such as running a prison, also fall within the scope of the gender duty. 
Private sector bodies are covered by the gender duty only in relation to areas of work that constitute a public function. For example, it will apply to a private contractor to the extent that he provides security services to a prison but not in relation to any of his services provided for customers or businesses in the private sector. Therefore, the duty will not apply to private contractors who do not carry out public functions. 
We recognise that this is a complex area where careful guidance will be needed to clarify how and when bodies are subject to the duty. It is part of the current public consultation exercise. Subsections (3) and (4) of proposed new section 76A list various exceptions in the form of public authorities which need not comply with the duty and functions to which the duty does not apply. These exceptions are similar to those provided in respect of the duties on race and disability equality. 
Broadly speaking, the duty will not apply to bodies that make law in Great Britain, including the General Synod, or to the intelligence services. Neither will it apply to court proceedings or proceedings in Parliament, even though in the case of the latter it will apply, for example, to the parliamentary authorities who employ Commons and Lords catering and cleaning staff, the Libraries and so on.

Eleanor Laing: I make a small point. I wonder why in clause 82(3)(c) there is a reference to the Scottish Parliament, when in clauses 51 and 81, where the exceptions are similar to those in clause 82, there is no mention of the Scottish Parliament.

Meg Munn: If the hon. Lady will allow me to continue, we will get a full answer to that shortly. It is an important point.
The exceptions of which I spoke—in relation to Parliament, for example—which preserve the full discretion of our law-making and security institutions, are justified. Subsection (2) of clause 83 amends the 1975 Act to make it necessary for the Secretary of State to consult the commission before making an order to add to the list of exceptions. Although it would be unusual, and certainly undesirable, for the Secretary of State not to make full use of the expertise and experience of the commission in this respect, the purpose of the requirement is to provide complete certainty that the commission's voice will be heard. Our proposals have been warmly welcomed. They constitute a vital leap in the field of gender equality and ensure that there is increasing confidence that public services will meet the differing needs of both men and women, and that all will benefit. I have explained those matters in detail, because I want the Committee to be clear about the importance of the public sector gender duty. 
On the specific point raised by the hon. Lady, clauses 51 and 81 are not about making specific laws,  but about public functions. The reason why the specification is in this clause is to do with the Scottish Parliament being in a position to make laws in the way that we do. If any further clarification on that is required, I am sure that we can provide it. 
Question put and agreed to. 
Clause 82 ordered to stand part of the Bill.

Clause 83 - Specific duties

Amendment proposed: No. 145, in clause 83, page 51, line 10, at end insert— 
'(1A) The Secretary of State shall by order impose on a person to whom the duty in section 76A (1) applies, or in so far as that duty applies to a person, a duty which the Secretary of State thinks will ensure a better performance of the duty under section 76A (1) in respect of functions related to education.'.—[Vera Baird.]

Roger Gale: With this it will be convenient to discuss the following amendments: No. 146, in clause 83, page 51, line 11, leave out 'subsection (1)' and insert 'subsections (1) and (2)'.
No. 147, in clause 83, page 51, line 15, leave out 'subsection (1)' and insert 'subsections (1) and (2)'. 
No. 148, in clause 83, page 51, line 18, leave out 'subsection (1)' and insert 'subsections (1) and (2)'. 
No. 149, in clause 83, page 51, line 21, leave out 'subsection (1)' and insert 'subsections (1) and (2)'. 
No. 150, in clause 83, page 51, line 24, after 'section 76B (1)', insert 'or section 76B (2)'.

Meg Munn: I shall to speak to all the amendments in one block. I thank my hon. and learned Friend the Member for Redcar (Vera Baird) for tabling them and therefore for allowing a discussion on these issues.
I am aware of the concerns of many people, including the teaching unions, about the fact that not all educational institutions might be covered by the specific duties under the gender duty. I should like to make it clear that it has always been our position that all public authorities, including educational institutions such as schools, colleges and universities, are covered by the general duty. 
The duty requires public authorities to have due regard to the need to eliminate discrimination and harassment and to promote equality of opportunity between women and men. However, when we came to launch the consultation document on the specific duties, on 4 October, we stated that we were giving 
''further consideration to the extent to which it would be appropriate for the specific duties to apply to schools, colleges and universities.''
That further consideration was to address a concern that the Department for Education and Skills originally had about whether the requirements of the specific duties would be inappropriate in the light of the policy framework known as the new relationship with schools and the understandable desire to limit bureaucratic burdens on all educational institutions. The same considerations apply regarding the disability duty introduced in the Disability Discrimination Act 2005 and its application to schools. Since then, the Department for Education and Skills has agreed that  the disability duty should also apply to educational bodies, subject to a light-touch approach being taken. 
Since the launch of the consultation document, a series of round-table discussions are under way, in collaboration with the Equal Opportunities Commission. Those discussions have led to growing recognition of the case for the specific duties applying to schools and other educational institutions. I am also pleased to say that my right hon. Friend the Minister for Schools has confirmed that she agrees, in principle, to extending the specific duties to education on the understanding that our officials continue to work together to ensure that appropriate arrangements for different education bodies are agreed, and that the relevant regulations and supporting guidance on the way in which the specific duties will apply are light touch, flexible and relevant to the realities of life in school and at other levels of education. That approach is entirely reasonable: as we made clear in the consultation document, our aim for the gender duty is to focus on outcomes rather than on imposing burdensome processes. 
I am also pleased that the EOC intends to produce sector-specific guidance for the particular situations of different levels of education. It is important to respond to the different ways in which institutions operate, and their different needs, and to help them implement their obligations effectively. As hon. Members will be aware, we are still in the consultation period on our specific duties, the closing date being 12 January. Afterwards we will need to analyse the responses carefully in order to publish a Government response to consultation three months after the closing date. The response will clarify our plans for the regulations for the specific duties and confirm how we intend the specific duties to apply in respect of educational institutions. I hope that that is sufficiently reassuring and invite my hon. and learned Friend to withdraw her amendment.

Vera Baird: I thank my hon. Friend for that statement. The EOC specifically asked me to express its gratitude for the helpful and open way in which she and her officials have discussed the matter all the way through. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn. 
Clause 83 ordered to stand part of the Bill. 
Clauses 84 to 89 ordered to stand part of the Bill.

Schedule 4 - Repeals

Amendment made: No. 33, in schedule 4, page 82, line 10, column 2, at end insert— 
'Section 49I.'.—[Meg Munn.] 
Schedule 4, as amended, agreed to. 
Clauses 90 and 91 ordered to stand part of the Bill.

Clause 92 - Extent

Meg Munn: I beg to move amendment No. 1, in clause 92, page 56, line 6, after 'But', insert— 
'(a) section [Sexual orientation: regulations for Northern Ireland] extends only to Northern Ireland, and 
(b) '.

Roger Gale: With this it will be convenient to discuss Government new clause 1—Sexual orientation: regulations for Northern Ireland.

Meg Munn: When sexual orientation discrimination was debated in the other place, the Government made clear their view that it is simply not acceptable for that sort of discrimination to occur in a modern and diverse society. On Report, my noble Friend Baroness Scotland referred to the commitment made my right hon. Friend the Secretary of State for Trade and Industry to legislate at the earliest possible opportunity in this Parliament to tackle sexual orientation discrimination.
Clause 80 enables us to fulfil that commitment to legislate to prohibit sexual orientation discrimination in Great Britain. However, it does not apply to Northern Ireland. It has its own long established and detailed anti-discrimination framework, which is separate from the framework that applies to Great Britain. However, there is no reason to believe that discrimination on the grounds of sexual orientation is any less invidious in Northern Ireland than in any other part of the United Kingdom. 
This Government consider that people in Northern Ireland should not lack the protections from discrimination available throughout Great Britain. We also believe that such protection must be consistent with the broader framework of mechanisms that already exist in relation to anti-discrimination and equality law in Northern Ireland. The amendment will ensure that protection from discrimination in Northern Ireland need be no less than that existing elsewhere in the United Kingdom. 
Amendment agreed to. 
Clause 92, as amended, ordered to stand part of the Bill.

Clause 93 - Short Title

Amendment proposed: No. 20, in clause 93, page 56, line 14, leave out subsection (2).—[Meg Munn.]

Evan Harris: Is it possible for the Minister to explain why the amendment is being made? I am not sure that it is one we have debated before.

Meg Munn: I am happy to explain the purpose of the amendment to any members of the Committee who may not have had the privilege of dealing with what is known as a privilege amendment before. It completes a formal piece of parliamentary procedure. When a Bill is introduced in the Lords, as this one was, at Third Reading in the Lords a ''privilege amendment'' is moved formally by the Government. The reason for the Lords making the privilege amendment is that it is the privilege of the Commons to control charges on public funds. To avoid infringing this privilege, the  Lords therefore formally declare that nothing in a Bill starting in their House involves such a charge.
The amendment removes the House of Lords self-denying privilege amendment in subsection (2) of clause 93. The Bill involves a charge on public funds—for example, in relation to the cost of the commission—which it falls to the Commons to control. I hope that that has clarified the purpose and effect of the formal piece of parliamentary procedure completed by Amendment No. 20.

Roger Gale: I am sure that the hon. Member for Oxford, West and Abingdon (Dr. Harris) will take comfort from the fact that the rights of the Commons remain inviolate.
Amendment agreed to. 
Clause 93, as amended, ordered to stand part of the Bill.

New clause 1 - Sexual orientation: regulations

'(1) The Office of the First Minister and deputy First Minister may by regulations make provision about discrimination or harassment on grounds of sexual orientation. 
(2) In subsection (1) ''sexual orientation'' has the same meaning as in the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 (SR 2003 No. 497). 
(3) The regulations may, in particular— 
(a) make provision of a kind similar to Part 3 of the Race Relations Order (discrimination on grounds of race, etc. other than in employment field) and Part 4 of that Order so far as it applies for the purposes of Part 3; 
(b) define discrimination; 
(c) define harassment; 
(d) make provision for enforcement (which may, in particular, include provision— 
(i) creating a criminal offence of a kind similar to, and with the same maximum penalties as, an offence created by the Race Relations Order; 
(ii) about validity and revision of contracts; 
(iii) about discriminatory advertisements; 
(iv) about instructing or causing discrimination or harassment); 
(e) provide for exceptions (whether or not of a kind similar to those provided for by Part 6 of the Race Relations Order or any other enactment relating to discrimination); 
(f) confer powers or impose duties or restrictions on the Equality Commission for Northern Ireland of a kind similar to those conferred or imposed on the Commission by Part 7 of the Race Relations Order; 
(g) make provision which applies generally or only in specified cases or circumstances; 
(h) make different provision for different cases or circumstances; 
(i) include incidental or consequential provision (which may include provision amending an enactment); 
(j) include transitional provision. 
(4) The power to make regulations under this section is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (SI 1979/ 1573 (NI 12)). 
(5) Regulations may not be made under this section unless a draft has been laid before and approved by resolution of the Northern Ireland Assembly. 
(6) In this section— 
''the Race Relations Order'' means the Race Relations (Northern Ireland) Order 1997 (SI 1997/ 869 (NI 6); 
''enactment'' includes an enactment contained in or made under Northern Ireland legislation.'.—[Meg Munn.] 
Brought up, read the First and Second time, and added to the Bill.

New clause 2 - Adaptations of rented housing in Scotland

'(1) In the Disability Discrimination Act 1995 (c.50), the following shall be inserted after section 49H (conciliation of disputes about improvements to let dwelling houses in England and Wales)— 
''49I Conciliation of disputes: rented housing in Scotland 
(1) The Disability Rights Commission may make arrangements with any other person for the provision of conciliation services by, or by persons appointed by, that person in relation to a dispute of any description concerning the question whether— 
(a) it is unreasonable for a landlord to withhold consent to the carrying out of any relevant work in relation to a house (within the meaning of the Housing (Scotland) Act 2005 (asp 00)) in Scotland, or 
(b) any condition imposed by a landlord on consenting to the carrying out of any such work is unreasonable. 
(2) Subsections (2) to (8) of section 28 apply for the purpose of this section as they apply for the purpose of that section and for that purpose a reference in that section to— 
(a) a dispute arising under Part 3 is to be construed as a reference to a dispute mentioned in subsection (1), and 
(b) arrangements under that section is to be construed as a reference to arrangements under subsection (1). 
(3) In subsection (1), ''relevant work'', in relation to a house, means work for the purpose of making the house suitable for the accommodation, welfare or employment of any disabled person who occupies, or intends to occupy, the house as a sole or main residence.''. 
(2) In section 53A (codes of practice) of that Act— 
(a) after subsection (1E) insert— 
''(1F) The Commission may prepare and issue codes of practice giving practical guidance to landlords and tenants of houses (within the meaning of the Housing (Scotland) Act 2005 (asp 00)) in Scotland as to— 
(a) circumstances in which the tenant requires the consent of the landlord to the carrying out of work in relation to the house for the purpose of making the house suitable for the accommodation, welfare or employment of any disabled person who occupies, or intends to occupy, the house as a sole or main residence, 
(b) circumstances in which it is unreasonable to withhold such consent, 
(c) circumstances in which any condition imposed on the granting of such consent is unreasonable, and 
(d) the application, in relation to such work, of— 
(i) sections 28 to 31 and 34(6) of the Housing (Scotland) Act 2001 (asp 10), and 
(ii) sections 52, 53 and 64(6) of the Housing (Scotland) Act 2005 (asp 00).''. 
(b) after subsection (4A) insert— 
''(4B) Where a draft code of practice under subsection (1F) is submitted to the Secretary of State for approval, the Secretary of State must, before deciding whether to approve it, consult the Scottish Ministers.''. 
(c) after subsection (6A) insert— 
''(6B) Before appointing a day under subsection (6)(a) for the coming into effect of a code of practice under subsection (1F), the Secretary of State shall consult the Scottish Ministers.'' 
(d) after subsection (8A) insert— 
''(8B) Subsection (8A) does not apply to a code of practice under subsection (1F).''. 
(3) In section 7 of the Disability Rights Commission Act 1999 (c. 17) (provision of assistance in relation to proceedings), in subsection (1), after paragraph (aa) insert— 
''(ab) proceedings in Scotland of any description to the extent that the question whether— 
(i) it is unreasonable for a landlord to withhold consent to the carrying out of work in relation to a house (within the meaning of the Housing (Scotland) Act 2005 (asp 00)) in Scotland for the purpose of making the house suitable for the accommodation, welfare or employment of any disabled person who occupies, or intends to occupy, the house as a sole or main residence, or 
(ii) any condition imposed by a landlord on consenting to the carrying out of any such work is unreasonable, 
falls to be considered in the proceedings,''.'.—[Meg Munn.] 
Brought up, read the First and Second time, and added to the Bill.

New clause 8 - Monitoring of exception in relation to immigration cases

'(1) The Secretary of State shall appoint a person who is not a member of his staff to monitor immigration cases. 
(2) The person appointed under subsection (1) shall monitor in such manner as the Secretary of State may determine the operation of the exception in section 51 (4) (f). 
(3) The monitor shall make an annual report on the discharge of his functions to the Secretary of State. 
(4) The Secretary of State shall lay a copy of any report made to him under subsection (3) before both Houses of Parliament. 
(5) The Secretary of State shall pay to the monitor such fees and allowances as he may determine. 
(6) In this section ''the monitor'' has the meaning of the person appointed under subsection (1).'.—[Dr. Harris.] 
Brought up, and read the First time.

Evan Harris: I beg to move, That the clause be read a Second time.
The new clause was proposed my noble Friends Lord Dholakia and Lord Lester in another place on Report and Third Reading in order strongly to urge the Government either to consider a new monitor for immigration to consider the way in which the exception relating to discrimination that we have provided for in part 2 of the Bill works or to extend the duties of the current race monitor to do that. It is important to explain why it is necessary for that to be covered and to ask why neither option seems acceptable. 
When exemptions were made to the race discrimination provisions for immigration functions—understandable exemptions given that rules will apply to certain nationalities and, arguably, at least in theory, that may well go beyond nationality, to other factors—the Government appointed a monitor to produce a report to Parliament to show that the exceptions were being dealt with fairly and appropriately. In that way, we are not solely reliant on the ability of often vulnerable people—in many cases, outside this country—to bring appeals or judicial reviews where appeals are provided for. The purpose of the independent race monitor is also to provide public confidence in the way in which that aspect of  immigration control is administered. She is paid out of public money to perform that function and annual reports are available. 
Discrimination dealing with religion or belief is, if anything, as sensitive or even more sensitive. Part 2 proposes something that is in itself acceptable: exceptions for immigration. That is dealt with under the public duties clause in subsections (4)(f) and (4)(g) to clause 51, which we discussed earlier. Given that this is a more sensitive subject, it is reasonable that the Home Office immigration service and the public would be reassured if there were some oversight of how things were done. 
The amendment was described in the House of Lords as a modest proposal and, on Report, the Minister, Baroness Scotland, agreed to take it away and consider it. It was proposed again on Third Reading. The point was made again that it is reasonable to have that assurance and this confidence-building measure in respect of the immigration service. Immigration officers have wide powers and although the police are subject to the Police and Criminal Evidence Act 1984, immigration powers are not always subject to it. My noble Friends felt that there was a need to safeguard the way in which the immigration rules are applied. In response, Baroness Scotland rejected the arguments, and I want briefly to analyse her comments so that we can take the argument forward rather than simply repeating it. 
Baroness Scotland claimed that the exception in clause 52—I believe it is now clause 51—is 
''relatively narrow in comparison with that which is provided at Section 19(D)''—
of the Race Relations Act 1976. She said that it could affect a large number of nationalities and many people, and that 
''it may apply wherever there are objective grounds for believing that it is reasonable to subject people of different nationalities to differential treatment for the purposes of immigration control.''—[Official Report, House of Lords, 19 October 2005; Vol. 674, c. 854.]
I understand that there could be a large number of authorisations affecting a large number of people. 
Baroness Scotland then said that the discretion to discriminate on grounds of the public good through the exercise of an exception in respect of religion or belief is likely to apply to individuals and is unlikely to be an everyday occurrence. Therefore, it would affect a relatively limited number of people. In that case, one could argue that the race monitor's role could be expanded to cover those cases. It would not require an extra salary, extra staff or an extra provision, so that in itself is not an argument for not doing it, particularly in such a sensitive area. There have already been appeals against the Secretary of State's exercise of discretion. For example, the Government did not win in the case of Reverend Moon. They were not successful on all their assertions. Surely it would be better to have monitoring that would enable the Government to learn from those mistakes. 
Baroness Scotland went on to say that it was assumed that the proposal would be a relatively easy  thing to do, would not take too much time and would be an add-on that could be easily accommodated. She explained that the people to whom she spoke believed that that was not the case, but it was not entirely clear why. 
It seems reasonable for us to ask that the exercise of the exception in this case is subject to a monitor. If we are talking about fairness, particularly in respect of sensitive issues such as religion and immigration, it does not seem too high a price to pay. I hope that even the hon. Member for Epping Forest (Mrs. Laing) would accept that it would not involve a huge amount of money or time if someone who is already paid were to take on this duty as well. It is a question of having confidence that the exception is used appropriately and fairly, and I urge the Minister to reconsider the Government's position.

Eleanor Laing: I do not have a great problem with the amount of money that the proposal would cost. It would be an added burden on the taxpayer, but it would be minimal. However, my party is unconvinced that it is necessary to add yet a further regulation, so we do not support new clause 8.

Meg Munn: I welcome the hon. Lady's support for the Government's position.

Eleanor Laing: We do consensus now.

Meg Munn: Yes, we do.
As the hon. Member for Oxford, West and Abingdon said, new clause 8 replicates one debated in the other place. We resisted it then and, despite further consideration, we continue to resist it. On balance, we do not feel that it is right to reproduce the arrangements in the 1976 Act. I shall not repeat the arguments in full, as he has referred to what my noble Friend Baroness Scotland said, but I shall enlarge a little. 
Discrimination is lawful by virtue of the section if it is covered by legislation undertaken or authorised by a Minister acting personally. Some ministerial authorisations allow discrimination in making immigration decisions, although the current ministerial authorisations permitting discrimination by the less favourable treatment of certain groups allow for discrimination in the process used to consider individual cases, but not in the actual decisions made. For example, arrivals of a particular nationality may be subjected to more rigorous questioning purely because of their nationality, but a decision to allow or refuse them leave to enter the UK will be taken purely on the basis of whether, in the immigration officer's view, they satisfy the requirements of immigration rules. 
Such treatment must be authorised by a Minister, and those authorisations are reported on by the independent race monitor. There are 10 or so in force. In this case, a relatively small number of authorisations may affect a great many individual cases spanning a large number of nationalities. Although the race monitor may consider individual cases in her assessment of the overall effect of a ministerial authorisation, it is not part of her statutory role to seek a review of the decision in such cases. 
The situation in the case of the exception in part 2 is different. As the hon. Gentleman said, the discretion to discriminate on grounds of public good is likely to be exercised with regard to individuals rather than groups, and that is unlikely to be an everyday occurrence. A remedy for failure to exercise that power correctly is available through appeal, if the conditions for appeal are satisfied, or through judicial review. 
I am not sure exactly what it would lead to should the monitor also be asked to consider decisions taken under paragraph (g), as the hon. Gentleman suggested, but there would be other differences. To the extent that the exception allows a determination that a particular religion is not to be treated in the same way as other religions—for instance, because it encourages children to renounce contact with their family—leading to a refusal to grant recognition for the purpose of admission as a minister of religion, that is not analogous with the power to authorise discrimination in respect of nationality, and will affect only those individuals who can otherwise satisfy the technical requirements needed to obtain that privileged admission. It is in any case always open to the persons involved to seek admission under a different category, provided that they satisfy the relevant requirements of immigration rules. 
In these circumstances, judicial review is the appropriate method of challenging the determination. To introduce a monitor would be unnecessarily bureaucratic. The appointment of a monitor would not in any case provide recourse for any individual cases. On the grounds that I have given, I continue to resist new clause 8.

Evan Harris: I note with interest the support given by the hon. Member for Epping Forest for the Government's position on this immigration matter. I know that that is the trendy thing for her party to do. It remains to be seen whether it causes major difficulties for either her party or Labour Members.
I am grateful for the Minister's response as far as it went. In respect of her last remarks, I point out that the proposed measure would not be instead of judicial review. The whole point of a monitor making reports to show how something is operating is to reduce the chance of it operating in a way that does not meet the appropriate standards of administrative law, and therefore to avoid future judicial reviews, especially where they may find against the Government regularly. It is right to say that the provisions of the exception in clause 51(4)(g) may well apply to groups of people, so we are not talking solely about individual cases. I have not argued that the monitor should be able to take up individual cases, but clearly she is entitled to comment on them as she comments on the impact of a statute in the area of her remit generally. 
My concern about excluding a person on the ''conducive to the public good'' basis is that the Government have said previously that they will use the list of unacceptable behaviours that was produced in the summer for consultation and then confirmed, because those are highly contentious. Indeed, they were seriously criticised by the Joint Committee on Human Rights in its report, published on Monday, on  the Terrorism Bill and associated matters. It criticised not least the fact that the list of unacceptable behaviours allows people to be excluded on the ''justifying terrorism'' basis. That will probably be applied to groups of people on the basis of their religion. It is not even the case that people would be excluded on the basis of encouraging terrorism indirectly, but on the basis of justifying terrorism under a wide definition. 
I urge the Government to consider what the Joint Committee on Human Rights said about that list of unacceptable behaviours. It was not one of those areas where there was a major division in the Committee, although there was concern among Labour Members about its scope. In so far as it relates to the exercise of the exception, I live in hope that the Government, on considering the opinion of the JCHR, might ask whether it would be appropriate to see whether the system is being operated fairly. Otherwise, there will be a large number of legal challenges to the use of the power under the exception in clause 51(4)(f). The decision not to take advice from an independent monitor will be one that the Government live to regret. 
In the hope that at some future point we will succeed in providing a safeguard and an attempt to create more public confidence in the way the system works, rather like my noble Friends Lord Dholakia and Lord Lester, I beg to ask leave to withdraw the new clause. 
Motion and clause, by leave, withdrawn.

New clause 9 - Public authorities and human rights

'(1) This section applies to any establishment or agency within the scope of sections 1 to 4 of the Care Standards Act 2000. 
(2) Any care establishment or agency is deemed to be a public authority in relation to the provision of care services subject to the Care Standards Act for the purpose of section 6 of the Human Rights Act 1998.'. —[Sandra Gidley.] 
Brought up, and read the First time.

Sandra Gidley: I beg to move, That the clause be read a Second time.
On Second Reading and at various stages in Committee, there have been concerns about the definition of a public authority and whether organisations exercising a public authority function are covered by the Bill. I feel that many of those matters are unresolved at this stage. 
The new clause seeks not to deal with the wider problem, but with the particular concern that care homes are not covered. There is a particular problem, because many older people spend time in a care home that might not be run by the local authority but is paid for by it. There is widespread concern that there have been various abuses of human rights in some care homes, although I stress that I mean more poorly run ones, because many clearly have very high standards. 
There is no redress under the Bill. The amendment seeks to extend the definition of a public authority under the Human Rights Act 1998, to protect those older people who receive care services from private  and voluntary agencies. That would include care homes, day care and domiciliary care in people's own homes. It is important to consider that because of the sheer scale of private provision. In 2004, more than 91 per cent. of care home places and two thirds of domiciliary care services were provided by private or voluntary sector providers. This is an area where there is currently a large loophole. 
We have previously discussed the Cheshire case of 2001, which established case law in this area. Hon. Members will be pleased to hear that I do not intend to repeat the arguments, because they are widely on the public record. Case law means that an older person in an independent care home or who is receiving care from an independent agency is not protected. 
I believe that that is contrary to the Government's intentions. It is a matter of public record that they are committed to seeking a case to challenge, to try to address the issue. However, four years on, it is disappointing to learn that that case has not yet come to light. What resources have been put into seeking out a case? How has the situation been monitored to ensure that an opportunity has not been missed? Have any cases been considered potentially suitable for the Government to take action on but then for some reason dismissed? 
If, in four years, a case has not come forward, it is disappointing to think that we might be here in two, three or four years' time re-rehearsing the same arguments. A fairly simple amendment should be able to settle the matter once and for all.

Eleanor Laing: I want to ensure that we have understood what is intended by new clause 9 and what would be its effect. I do not disagree with the hon. Lady's intention to try to establish or make clear the rights of people in care homes. In many cases, they are people who cannot speak up for themselves, and it is important that their rights be protected. Sadly, in many cases there has been a need for such protection because of bad behaviour by proprietors, negligence or other problems. I do not disagree with that aspect of the Liberal Democrats' intentions, but I am concerned that widening the definition of public authorities would bring in care homes. Such organisations, as public authorities, would then have a duty put upon them in respect of religious discrimination. Many care homes are owned and administered by religious bodies, and I believe that they are entitled to discriminate because that is the very nature of their existence. I would not wish to see their right to choose who should be in their care compromised if their charity is administered by a particular church. There are, for example, many Jewish care homes in my constituency. While they might minister to people of other religions as well, I protect their right to discriminate with regard to the people whom their organisation exists to benefit. They should be entitled to do that.

Sandra Gidley: We are attempting to ensure that basic human rights are covered, rather than discrimination strands. That is the difference.

Eleanor Laing: I appreciate that. I had hoped that that was the hon. Lady's intention. In that case, I shall address my question to the Minister who has, no doubt, had extremely good legal advice. It is not clear to me whether the effect of the new clause might be wider than that intended by the hon. Member for Romsey (Sandra Gidley). I want to be certain that the position of charities and other religion-based organisations that run care homes for those adhering to their own religion is not compromised by the new clause.

Meg Munn: Older people in residential care are, of course, among the most vulnerable people in our society. I am sure that all Committee members share the concern of the hon. Member for Romsey that those living in care establishments should receive high standards of treatment. The Government share the dissatisfaction with the interpretation made in the Leonard Cheshire case. However, we do not believe that legislative amendment is the answer.
Let me outline how we are dealing with the proper interpretation of public authority as the phrase appears in the Human Rights Act. We believe that the problem lies not in the drafting of the Act but in the way in which the courts have interpreted it. As the Joint Committee on Human Rights found, any further legislative attempt to refine the definition of public authority is likely to lead only to additional uncertainty. Similarly, an amendment dealing with one discrete area, as this new clause would, is unsatisfactory as it would create pressures to treat other areas similarly. That would lead us to yet another list in primary legislation which, as is the way with such lists, would tend to be overtaken by events and become exclusive instead of inclusive. 
We have, however, taken effective measures to mitigate the problem in the short term. As recommended by the Joint Committee on Human Rights, we have put procedures in place to identify a suitable case in which to intervene to argue for a reconsideration of the meaning of ''public authority''. We believe that the prospects of overturning the Leonard Cheshire decision are promising. We have set up arrangements with the registrar of civil appeals and the head of the administrative court to identify such a case. This matter is a high priority for the human rights policy team at the Department for Constitutional Affairs. That team looking for a case in which to intervene, and it will lead work to examine the issue as part of the discrimination law review. That consideration and consultation is the right way to consider a possible extension of the scope of the Human Rights Act. 
As recommended by the Joint Committee and the Audit Commission, we have issued guidance to public authorities on contracting for services. We hope that that guidance will assist in the provision of services compatible with convention rights. That approach, based on contract specification, enables the protection of the Human Rights Act to be extended not only to those residing in establishments covered by the Care Standards Act 2000, but, potentially, to all consumers of public services delivered under contractual arrangements. Having said that, our minds are not  closed about the prospects of legislative amendment. As I have indicated, a strand of the discrimination law review is specifically considering this matter. If a suitable way is found, a refinement of the scope of the Human Rights Act could be possible, but this is not a matter on which it would be right to rush. 
All those measures seek to reinstate the Government's original intention for the scope of the Human Rights Act. The Act was never intended to impose duties on purely private parties to comply with convention rights. The amendment would, however, expand the scope of ''public authority'' to include any establishment or agency covered by the Care Standards Act. All those bodies would, therefore, be covered in respect of all their functions by the duty in section 6 of the Human Rights Act. 
On the point about religious organisations raised by the hon. Member for Epping Forest, I immediately thought of my own Church's Methodist Homes for the Aged. We do not believe that the amendment would affect that part of the Bill, but we will, in any case, wish to consider the matter within the discrimination law review. Private organisations may well provide functions that are not of a public nature at all, but, under the proposed new clause, section 6 of the Human Rights Act would apply to them. That would be a significant extension of the ambit of the Human Rights Act. Anti-discrimination legislation in respect of goods, facilities and services, which is, by necessity, more tightly drawn and more certain in its effect, is the means by which we currently regulate such activities. The discrimination law review will, of course, consider extending the regime in respect of goods, facilities and services to include age discrimination. 
I hope that I have demonstrated the seriousness that the Government attach to this important matter, and I am grateful to the hon. Member for Romsey for raising it. We are committed to resolving the issue effectively, but we believe that our approach offers the best chance of a lasting solution. I hope that, with those reassurances, the hon. Lady will withdraw the amendment.

Sandra Gidley: I thank the Minister for that comprehensive reply. I said from the outset that the new clause was probably an imperfect way of solving the wider problem, but I felt it important to draw attention to the problems faced by some vulnerable residents of our care homes. The fact that we have waited four years for a suitable case to arise highlights a problem in the system. While I welcome the guidance given to local councils, it might be useful were users and their relatives also provided with some simple guidance on what they could expect as basic human rights and what sort of things could be challenged. I am sure that there are organisations that would willingly help with that challenge, because there is a lot of concern about the fact that much behaviour goes unnoticed and is not acted on. I look forward to seeing what the review comes up with in due course. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.

New clause 11 - Harassment by third parties

'(1) The Sex Discrimation Act 1975 (c.65) is amended as follows. 
(2) In section 4A of the Sex Discrimination Act 1975 (harassment, including sexual harassment) subsection 4A (1) (b) insert— 
''(c) he fails to take reasonable steps to prevent the occurrence or continuation of any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect— 
(i) of violating her dignity, or 
(ii) of creating an intimidating, hostile degrading, humiliating or offensive environment for her, or''. 
(3) In section 4A (1) (c) for ''subsection (a) or (b)'' substitute ''subsections (a), (b) and (c)''. 
(4) In section 4A (1) (c) for ''subsection 1(a) or (b)'' substitute ''subsections 1(a), (b) and (c)''.'. —[Sandra Gidley.] 
Brought up, and read the First time.

Sandra Gidley: I beg to move, That the clause be read a Second time.

Roger Gale: With this it will be convenient to discuss new clause 12—Harassment in the provision of services—
'(1) The Sex Discrimation Act 1975 (c.65) is amended as follows. 
(2) In section 29 of the Sex Discrimination Act 1975 (discrimination in provision of goods, facilities or services) after subsection (1) insert— 
''(1A) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to subject to harassment a woman who seeks to obtain or use those goods, facilities or services.''. 
(1) In subsection 29 (2) for ''subsection (1)'' substitute ''subsections 1 and 1A''. 
(3) In section 29 (4) for ''subsection (1)'' substitute ''subsections 1 and 1A''.'.

Sandra Gidley: New clause 11 deals with harassment of employees by third parties and would ensure that the equal treatment directive was properly implemented in terms of harassment. New clause 12 would extend the protection of service users from harassment to the provision of services in both the public and private sectors.
The Government have amended the Sex Discrimination Act to make it unlawful for a public authority to undertake any action that constitutes harassment when it exercises a public function. They have also placed a positive duty on public authorities to have due regard to the need to eliminate harassment when carrying out their functions. The Government's amendments rely on the definition of harassment recently inserted into the Sex Discrimination Act by the Employment Equality (Sex Discrimination) Regulations 2005. Those regulations implemented the equal treatment directive, which came into force on 1 October. 
Those are welcome moves, but the Equal Opportunities Commission has raised concerns that the interpretation of harassment adopted in the regulations is worryingly narrow. In particular, liability for harassment by third parties is covered only by the current statutory definition of harassment in very limited circumstances such as in employment and vocational training, if the employer or training  provider fails to take preventive or remedial action because of the sex of the complainant. New clause 11 would address that sort of problem. 
An example of how such a problem might arise is a situation in which a woman working in a local authority facility was harassed by a customer. Employers have a duty to prevent all such incidents, and one would hope that a good employer would provide a safe working environment for all staff. However, under the current provisions, that woman would have no grounds on which she could challenge her employer, unless she could prove that the employer would have treated a similar complaint from a male member of staff more favourably or could show that the employer might have taken preventive action to protect male employees in similar circumstances. In a situation in which the employer had failed to protect all members of staff from harassment, it is difficult to see how a woman could take action under the Bill as currently drafted. Moreover, there are some situations in which women might be more liable or vulnerable than men to harassment. 
As the legislation is currently drafted, a woman is required to have a hypothetical male comparator before she can pursue any sort of case. However, other countries have interpreted the directive differently. One example is the Republic of Ireland, where there is no requirement for a comparator of the opposite sex in order to bring a claim, but solely a need to show that there was unwarranted conduct related to any of the discriminatory grounds. 
New clause 12 would extend the harassment protection to users of goods, facilities or services in the public and private sectors under section 29 of the Sex Discrimination Act. That section currently outlaws sex discrimination in the provision of goods, facilities and services, but does not outlaw harassment. In due course, the Government will have explicitly to outlaw harassment in services provided by the public and private sectors, to comply with the goods and services directive, which will be implemented eight months after the gender equality duty enforcement date of April 2007. In April 2007, public bodies will have to apply the definition of harassment and, eight months later, they will have to include services covered by section 29 of the Sex Discrimination Act. It was seen that, as in all things, it would be much better to aim for some simplicity and the new clauses would achieve that result.

Meg Munn: I want to say at the outset that members of the Committee should be in no doubt that the Government believe that harassment is abhorrent and should not be tolerated. However, I shall explain why we are not minded to accept the new clauses. As the hon. Lady said, the Employment Equality (Sex Discrimination) Regulations 2005 came into effect on 1 October 2005. They inserted into the Sex Discrimination Act 1975 the definition of harassment, including sexual harassment. Until then, case law had established that certain forms of unwanted behaviour carried out because of a person's sex constituted harassment and amounted to  sex discrimination for the purposes of the Sex Discrimination Act. That definition applies to employment and vocational training only.
The definition of ''harassment'' under the Sex Discrimination Act mirrors the definition under the Bill. It outlaws discrimination in employment on the grounds of race, sexual orientation, religion and belief. The same approach is being taken in forthcoming legislation on age discrimination in employment. Under discrimination law, harassment is when a person subjects another to unwanted conduct, which has the purpose or effect of violating the other person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. 
Under the Sex Discrimination Act, harassment is unwanted conduct on the grounds of the victim's sex. The Act also outlaws sexual harassment, which is unwanted verbal, non-verbal or physical conduct of a sexual nature, a concept that applies in sex discrimination only. Section 41 of the Sex Discrimination Act makes an employer liable for an act of discrimination or harassment carried out by another, as long as that person is employed by him and carries out the act in the course of his or her employment. 
New clause 11 would extend that precarious liability further to cover sexual harassment by third parties. It would mean, for example, that if a client subjected an employee to sexual harassment and the person's employer does not take reasonable steps to prevent the third party from doing that, the employer would be liable for the act of sexual harassment. In practice, an employer would be liable for acts of sexual harassment carried out by others, over whom he has no direct control. That would be a significant extension of the law and its desirability would need to be considered carefully. 
For example, is it justifiable for an employer to be held liable when the harassers themselves face no sanction for their unacceptable behaviour? If that were considered to be a fair way in which to approach the matter, how would the employer know whether he had taken reasonable steps to prevent the harassment from occurring and, thus, had stayed within the law? We need to consider such matters carefully before deciding whether there is a need to extend the scope of the harassment provisions in the way proposed by the new clause. 
We want to ensure that greater consistency is achieved by the protection afforded to different groups, whenever that is appropriate. The new clause would not only put sex discrimination legislation significantly out of step with legislation covering the other equality strands, but would lead to inconsistency within the Sex Discrimination Act itself. That raises the question why consideration of that extension of the law should apply only to sexual harassment. The principle of third-party harassment would also apply to harassment on the grounds of sex and harassment in the other equality strands. For both reasons, we believe that the discrimination law review is the appropriate vehicle by which to give full and proper consideration to such issues. We would need, in  particular, to consider whether the approach suggested in the new clause assigns responsibility for third party harassment in an appropriate way. 
Section 29 of the Sex Discrimination Act makes it unlawful to discriminate on grounds of sex in the provision of goods, facilities or services. New clause 12 would extend that provision to make harassment in the provision of goods, facilities or services unlawful, too. The Government support the principle behind the new clause. Indeed, we are already committed to bringing in protection in that regard, but we consider that now is not the right time to do so. As I have made clear, we are considering harassment, including sexual harassment, in the discrimination law review. I am sure that members of the Committee will be aware by now that a key objective of the review is to remove unjustified inconsistencies in the protections afforded to different groups of people. That is the light in which we shall consider harassment. 
Through the review we are consulting with a range of stakeholders, and it is vital that we consider their perspectives. It will help us to ensure that goods and service providers are aware of and prepared for any new responsibilities that they may have. On that basis, will the hon. Lady withdraw the motion?

Sandra Gidley: The new clause was tabled partly to try to establish the Government's thinking. At this stage of Committee deliberations, after many accusations about the Opposition and inequalities in the Equality Bill, and after my hon. Friend the Member for Oxford, West and Abingdon was taken to task this morning for using the phrase ''hierarchy of inequalities'', it seems ironic that we should always have a counter-accusation.
I understand the difficulties with the third party, but it strikes me that there are probably many cases in which potential problems are highlighted and ignored—for example, a woman attendant who does not feel safe from harassment in a particular environment. That problem could be drawn to the employer's attention and knowingly not dealt with, because the employer knows that there is no redress. The new clause would have been helpful in such situations, but I beg to ask leave to withdraw the motion. 
Motion and clause, by leave, withdrawn.

New clause 15 - Employment Equality Regulations (amendment)

'In the Employment Equality (Religion or Belief) Regulations 2003 (S.I. 2003/1660), leave out regulation 3(2).'. —[Dr. Harris.] 
Brought up, and read the First time.

Evan Harris: I beg to move, That the clause be read a Second time.
The motion asks why no amendment has been made to the Employment Equality (Religion or Belief) Regulations 2003 to bring out what is considered to be the better approach to the issue in this Bill. Clause 43 has a definition of religion and belief that everyone considers appropriate, because it is aligned closely with the Human Rights Act. In clause 76, the Government propose that the old definition of  religion and belief in the 2003 regulations should be amended to account for the new definition. 
In clause 44 a new version of discrimination has been drawn up as the result of an amendment in the House of Lords, which effectively merged two sub-paragraphs into one: 
''A person (''A'') discriminates against another (''B'') for the purposes of this Part if on grounds of the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief) A treats B less favourably than he treats or would treats others (in cases where there is no material difference in the relevant circumstances).''
Prior to that amendment, the wording was such that it appeared that if the religion was A's religion, it would be exempted. 
The Government were right to make it clear that A's religion or belief would be covered, without necessarily conceding that that was the effect of the original wording, because the effect would apply whether or not the religion or belief was A's religion or belief, as long as the discrimination was on grounds of the religion or belief of B or any person except A. It does not matter whether it happens to be A's religion. 
The 2003 regulations do not include the same definition. My new clause, which is by definition probing, was meant to ask whether the Government intend the same read-across. If not, why not? If yes, we would support it. Uniformity in this area of law is useful. 
On Tuesday we mentioned an area where the Government have chosen not to make the regulations match the provisions in the Bill, which was the test for an exception for continued discrimination or discrimination by a religious organisation, religious charity or faith school. The Government argued that that was different because the organisations were small and should have a threshold different from and much lower than the controversial exceptions in the regulations. There is no clear reason why the basic definition of discrimination should be different, and I hope that the Minister can define the Government's intention.

Meg Munn: New clause 15 would, as the hon. Gentleman said, amend the Employment Equality (Religion or Belief) Regulations 2003 by removing regulation 3(2), and I thank him for providing us with the opportunity to discuss the discriminator's religion or belief as defined in those regulations. The Government have already revised, in the other place, the definition of discrimination in what is now clause 44. It was never the Government's intention that the Bill should allow a person to discriminate against another of the same religion or belief, nor do we believe that that was the effect of the original provisions. Nevertheless, to put the issue beyond all doubt, we tabled amendments in the other place so that the position is completely clear.
The Bill does not enable a person to discriminate against another of the same religion or belief in the provision of goods, facilities and services. As the hon. Gentleman has no doubt seen, there is a link between how the issue of the discriminator's religion or belief is  dealt with in regulation 3(2) and how it was dealt with in the definition of discrimination in the Bill as originally drafted. The question, as he has rightly pointed out, is whether, having revised the Bill to achieve added clarity, we should also revise the regulations. 
Regulation 3(2) makes it clear that the discriminator's religion or belief should not be a factor in considering whether discrimination has occurred in the area of employment or vocational training. However, I recognise that some have argued that regulation 3(2) may create a loophole whereby an employer, person A, could discriminate against someone else, person B, if that person was of the same religion but not, in the view of person A, properly observant. I can assure the Committee that it is not the intention or the effect of the regulation to allow discrimination in such cases. 
A person who discriminates against any person because they do not share their beliefs would be covered by the regulations, as they cover belief as well as lack of belief. That means that person B would be protected if they did not share the same beliefs as person A, even within the same religion. In other words, it is the religion or belief of person B, not of person A, that counts. I am starting to wonder whether we should perhaps be using some sort of flow-chart.

Evan Harris: I am following the Minister.

Meg Munn: I commend the hon. Gentleman on his attention. To give an example, an employer who was a Muslim could not deny another, more secular Muslim employment on the grounds that they were not religious enough. The religion or belief regulations have been in effect since December 2003 and are working effectively. There is no evidence to suggest confusion or that regulation 3(2) is being used as a loophole to allow people to discriminate against others of the same religion. That said, I recognise the concern, and the Government have already changed the Bill to make the position clearer. Given that we are moving towards the end of our consideration and that I have given way on very little, and having listened to the points raised today, I will take the issue away and have another look at it. I hope that, on that basis, the hon. Gentleman is content to withdraw the motion.

Evan Harris: We should welcome two things. First, the Minister has demonstrated an ability to tackle the issues in part 2—a pleasure previously restricted to her colleague, the Under-Secretary of State for the Home Department, the hon. Member for Wythenshawe and Sale, East (Paul Goggins). From that brief excerpt, she can see how much fun that was, and she too now has a good mastery of part 2.
Secondly, and more importantly, I am pleased that the Minister sees the point. As I think I made clear, I was not seeking to claim that the Government ever felt it would be right to discriminate in the way that some people might think was possible given the loophole. I am happy to assure her of that and I am grateful for her agreeing to take the issue away to see whether—for  the sake of consistency, if nothing else—it would be wise to make the relevant changes. I beg to ask leave to withdraw the motion. 
Motion and clause, by leave, withdrawn.

Roger Gale: If the hon. Member for Bath (Mr. Foster) were present, he would now be sending a postcard to his mother. Before we come to new clause 16, I remind the Committee—my memory is not very long, but it does at least go back to Tuesday afternoon—that we had a substantial debate on most of the issues arising from the new clause and agreed to confine our comments strictly to matters of guidance. If the hon. Member for Oxford, West and Abingdon wants to move the new clause formally, listen to the Minister and then respond, that is entirely up to him.

New clause 16 - Guidance on application of prohibition in relation to school transport

'(1) The Secretary of State shall issue guidance under this section setting out how school transport under sections 50(2)(b), 50(3)(b) and 51(4)(k) and (v) shall be provided. 
(2) Guidance issued under subsection (1) shall have particular regard to the duty not to discriminate on the grounds of religion or belief and to carry out public functions with due regard to the Human Rights Act 1998.'. —[Dr. Harris.] 
Brought up, and read the First time.

Evan Harris: I beg to move, That the clause be read a Second time.
I shall indeed talk about guidance and I am conscious of the fact that we do not want to rehearse the principles of non-discrimination. In reading from the reports on guidance by the previous Joint Committee on Human Rights and the Education and Skills Committee, therefore, I shall seek to be brief and to keep strictly to the issue. The point that I seek to make with the new clause is that the current guidance is unsatisfactory and has been found to be so by both those Committees. If the Minister cannot assure me that guidance will be expedited to deal with the point, I fear that there will be continued discrimination. 
I shall not go into this issue, but, as I said previously, there is discrimination against the non-religious on the basis that they are not provided with the same transport—to go the extra mile, as it were. The law on the issue is in section 509 of the Education Act 1996, which permits local education authorities to discriminate on the basis of religion or belief. 
The current Government guidance on school transport takes the form of a departmental circular dated 21 January 1994. Paragraphs 29 to 31 deal specifically with transport to denominational schools and colleges. Those paragraphs are highly relevant and I shall explain what they say, because I want to argue that the guidance is unsatisfactory. Paragraph 29 says: 
''Many LEAs exercise the discretion afforded by section 55 [Education Act 1944]''—
now section 509 of the 1996 Act— 
''to provide free transport or assistance with fares for pupils or students who attend the nearest school or college of their parents' religious denomination, even though they could have attended a non-denominational institution nearer home.''
Paragraph 30 continues: 
''From 1 October 1993, section 55(3) was amended by paragraph 15 of Schedule 19 to the Education Act 1993. In considering whether or not transport is necessary—and therefore should be free—under section 55(1), LEAs must have regard, in the exercise of their discretion, to all relevant factors. As amended, section 55(3) provides that LEAs shall have regard to (amongst other things) not only the age of the child or young person and the nature of his route to school or college, but also 'to any wish of his parent for him to be provided with education at a school or institution in which the religious education provided is that of the religion or denomination to which his parent adheres.' Thus while Parliament has continued to leave LEAs discretion in their assessment of this factor, it has made explicit the requirement to consider it.''
Paragraph 31 states: 
''The Secretary of State hopes that LEAs will continue to think it right not to disturb well-established arrangements of the kind referred to in paragraph 29, some of which have been associated with a local agreement or understanding about the siting of denominational schools. He continues to attach importance to the preservation of the opportunity to choose a school or college in accordance with religious convictions.''
The problem is that the Joint Committee on Human Rights report on the draft School Transport Bill—the 17th report of the session 2003–04—called for the guidance, which was then in the guise of the draft prospectus on school travel schemes, issued by the DFES, to be amended, as it had recommended that the extant guidance be amended, because it referred only to pupils travelling to denominational schools. It was pleasing that the Government amended the draft prospectus when they formally introduced that Bill. 
In the 20th report of the session 2003–04, the Joint Committee on Human Rights also recommended, notwithstanding the then impending introduction of the School Transport Bill and a more satisfactory revised prospectus, that the extant guidance be amended to ensure that it was right. The report referred at paragraph 6.11 to the key recommendation that the Government need to address: 
''In our view these paragraphs in the current guidance on school transport are now positively misleading for LEAs in light of the Government's welcome acceptance . . . that free or subsidised school transport must be provided without discrimination on grounds of religion or belief . . . We cannot see any reason for not making the position equally clear to LEAs by amending the current guidance on school transport to the same effect. Unless it is made clear, we think there is a significant risk of LEAs being misled by the guidance into adopting or maintaining discriminatory policies and practices, and of the current guidance itself being subjected to legal challenge on the ground that it is not an accurate statement of the legal position.''
It continued in paragraph 6.12 with a short recommendation: 
''We therefore recommend that the DfES amend the guidance contained in circular letter 21 January 1994 so as to include specific guidance on non-discrimination''.
That has not happened, and there was no Government response to the 20th report. That issue was picked up by the Education and Skills Committee in its report on the draft School Transport Bill, which said something similar at paragraph 66: 
''A parent who expresses a strong philosophical view that a denominational education would not be appropriate for their child is in a similar legal position to one who expresses a strong preference for denominational education. Guidance issued to LEAs should clarify that different treatment in this case could amount to discrimination . . . In order to reduce the potential for discriminatory practices, and to clarify the legal situation under the Human Rights Act, guidance to LEAs must make clear that where transport arrangements exist to support parents' denominational preferences, they must also cater for strongly held philosophical preferences.''
Finally, paragraph 67 stated: 
''The human rights implications of school travel schemes are complex and we have found evidence of existing confusion over legal obligations.''
It is important to note that another Select Committee considered the issue and found evidence of problems, so we should add that it is important that evidence be shown, otherwise the argument is purely theoretical. 
The report continues: 
''In this context, the guidance given to LEAs in the draft Prospectus is woefully inadequate. It is unacceptable simply to state that local authorities should take legal advice before submitting their applications. The Government should provide clearer guidance to LEAs on those school transport practices which it considers would be discriminatory, particularly as the Secretary of State could be subject to legal action for approving any discriminatory scheme. The Government should pay heed to the recommendations of the Joint Committee on Human Rights on the draft Bill when drawing up this guidance.''
The School Transport Bill did not complete its passage, so it was never tested under scrutiny. The problem, therefore, remains. Meanwhile, the 20th report did not receive a Government response, perhaps because we ran out of parliamentary time. 
The fact that the problem still exists is shown by the explanatory notes. I dealt with them on Tuesday, so I shall not repeat the argument, but they continue to be positively misleading. In light of what I have said, I hope the Government will recognise that there is a problem with the extant guidance. Unless they can show evidence that problems are not caused by that guidance, which would contradict the Education and Skills Committee's view that there are problems, something must be done now, as well as in relation to the Bill. 
The Joint Committee on Human Rights has raised this concern three times. We have not had a report on this Bill, so it remains to be seen whether the concern remains. I am not saying that the problem is being repeated, although it may well be if the Government are being consistent. Even before consideration of the Bill, the Joint Committee called—three times—for adequate guidance to ensure that there is not discrimination against non-religious parents of the sort that appears to exist at present, and that is encouraged, albeit unintentionally, by the Government's current guidance. 
I hope that the Minister can offer reassurance on this issue. The Government's pronouncements will be examined closely by people who are suffering from what they consider discrimination. They might be persuaded not to bring legal action if they receive a satisfactory assurance that the Government are aware of the problem and are going to tackle it.

Eleanor Laing: The hon. Gentleman has raised an important issue. I agree that there is a problem, and he explained it very well—I do not usually pay him that compliment. This issue has a long history. Many Committees and Governments of different political persuasions have examined it, but there is still a problem. The issue has not been properly tackled. 
There can be little doubt that discrimination exists. Some children whose parents choose for them to go to a denominational school have to travel further than they would if they did not go to such a school, so their school transport is paid for, while other children, who might live less than half a mile under the limit for receiving free school transport to a non-denominational school, are disadvantaged because they cannot benefit. 
In my constituency, there is a suggestion that children who attend a school for children with special needs should not have their school transport paid for if their parents' income is above a very low threshold. It is right for there to be limitations on budgets. However, because of that—these matters always come back to taxpayers' money—children whose parents follow a particular religion and choose a particular school and type of education for their offspring, which they have every right to do, get a financial advantage over parents whose children have special needs. Those children might even need to be transported in a wheelchair or by another costly means, but they do not benefit. 
I have no precise and perfect solution to this problem, and I am not certain that new clause 16 would solve it perfectly either, but it would open the way for discussion, and I am sure the Minister will appreciate that. Like the hon. Member for Oxford, West and Abingdon, I ask her to give the Committee an assurance that the Government are aware of the problem and intend to address it in the near future.

Roger Gale: I cannot recall whether the Minister was present on Tuesday afternoon, but I know that the hon. Member for Beaconsfield (Mr. Grieve) was on the Front Bench when I ruled that we should discuss the matter of guidance. We had a considerable debate at that time. I appreciate that these are important issues that probably affect the constituents of every Member of Parliament. I ask the Minister to stick strictly to the matter of guidance, but if she wants to write to hon. Members on the broader issues, that is of course entirely a matter for her.

Meg Munn: I shall do my best, Mr. Gale. As has already been said, the Bill contains exemptions from the provisions on discrimination for local education authorities and public authorities on the grounds of religion or belief in relation to school transport. LEAs have a statutory requirement to provide free home-to-school transport for pupils who live a certain distance from their nearest school. They also have some scope to decide when transport is necessary in any other circumstances, and they consider each pupil's case on its merits, taking account of all relevant factors.
There is discretion, which means that LEAs often provide subsidised transport for pupils of a particular faith school that is outside the local area, although I stress that the discretion is not limited to transport to faith schools. LEAs may also—it is our clear belief that they should—provide subsidised transport to a non-faith school for a child whose parents are strongly opposed to their attending a faith school closer to  home. The exception is needed to protect such special arrangements, whether they benefit those of a particular faith or those who for philosophical reasons seek an alternative to a faith school. I emphasise that LEAs can, and do, offer pupils free or subsidised transport in various circumstances. 
The hon. Member for Oxford, West and Abingdon discussed this matter earlier this week, and I know that he understands the need for the transport exemption and has not sought to remove it. By seeking to require the Secretary of State to issue guidance on the provision of home-to-school transport—guidance that must have particular regard to the duty not to discriminate on the grounds of religion or belief, and to the duty on local authorities to carry out their functions relating to school transport with due regard to the Human Rights Act 1998—the hon. Gentleman is pointing it out that there is uncertainty about the provision of free school transport. I agree, and acknowledge that the home-to-school transport legislation is out of date. That is why we have included proposals to extend rights for home-to-school transport in the White Paper ''Higher Standards, Better Schools for All''. 
The proposals will be included in the forthcoming School Transport Bill, and as a result of those proposals, the Secretary of State for Education and Skills will issue new guidance relating to the provision of home-to-school transport, a draft of which will be published alongside that Bill. The guidance should clarify the duties of LEAs with regard to the provision of school transport and their obligations to ensure fairness. I believe that that will be a more appropriate place in which to deal with the issues raised by the amendment.

Evan Harris: I am listening carefully to the Minister, and I note her comment about an alternative way of issuing guidance. Will she ask her ministerial colleagues to ensure that that guidance is consulted on, that it is taken seriously and that the concerns expressed in Committee are passed on? Will they also ensure that the Select Committees that have expressed concern about the existing guidance get the chance to comment on an early draft of the new guidance to prevent more public authorities from disagreeing about its appropriateness? Perhaps that is one way in which to deal constructively with the matter of the guidance.

Meg Munn: I am a big fan of joined-up government, and I am certainly happy to pass on the hon. Gentleman's comments.

Kitty Ussher: I agree that the current guidance is quite confusing. I have a constituency case on which I would appreciate a response from the Minister, now or in writing, on what the current law would advise. A mother who is not Catholic but who nevertheless wanted her child to go to a Catholic school visited my surgery. She succeeded in her application, and so an atheist child attended a Catholic school. The school was some distance from her house and when she applied for free transport, the local education authority official told her that it would not be provided because she was not a Catholic parent. I believe that to be clearly wrong and discriminatory against that individual. Will the Minister say whether my assumption is right?

Roger Gale: Order. In the spirit of Christmas, I allowed the hon. Lady to ask her question, but I fear that the Minister will have to write to her with the answer.

Meg Munn: Indeed, I fear that it may be outside my competence to do so, but I shall certainly consider the matter.
The hon. Member for Oxford, West and Abingdon managed to interrupt me with slightly more than three words to go, as he tended to do to my hon. Friend the Under-Secretary. I hope that the hon. Gentleman is willing to withdraw the amendment.

Evan Harris: I am willing to withdraw the amendment. I shall carefully consider the timings of the alternative approach. I was not sure whether the Minister meant that guidance would be produced under the Bill and that, in respect of school transport, it would refer to other guidance, or whether it is proposed first to enact the Bill, in which case there would still be a gap in respect of part 2 before the new guidance was formalised. Perhaps the Minister will write to me about the timing, as it is a legitimate point.
The hon. Member for Burnley (Kitty Ussher) raised a fascinating case. I do not propose giving a view on it because it is a complex matter. However, it underpins the need for clearer guidance, and I am sure that it is not the only case. 
I beg to ask leave to withdraw the motion. 
Motion and clause, by leave, withdrawn.

Roger Gale: Once again, I remind the Committee that on Thursday last, we had a considerable debate on clause 35. I therefore expect a fairly narrow debate on new clause 17.

New clause 17 - DISCRIMINATION ON THE GROUNDS OF

'In section 2A (1) of the Sex Discrimination Act 1975 (discrimination on the grounds of gender reassignment) for paragraphs (b) and (c) substitute— 
''(b) any provision of Part 3.''.'.—[Dr. Harris.] 
Brought up, and read the First time.

Evan Harris: I beg to move, That the clause be read a Second time.
I do not seek to explore the need to protect transgender people from discrimination in the provision of goods and services, because most of what needs to be said about it was said in previous debates. However, one point not raised previously concerns the Gender Recognition Act 2004. During the passage through the House of that legislation—I was a member of the Committee that considered it—the Joint Committee on Human Rights clearly indicated that it was appropriate for transgender people to be protected in connection with the provision of goods and services and other areas. The Joint Committee said that that Bill could usefully fill an omission, although the Government chose not to take that opportunity to do so. The Government have decided on a number of occasions not to close that gap. 
The new clause explores how the Government have chosen to close the gap, which we believe could and should have been closed many years ago. The new clause would make it clear that part III of the Sex Discrimination Act 1975 applies also to transgender people. Because trans people are currently excluded from most aspects of the gender duty in so far as it relates to goods and services, the new clause would bring them within the gender duty, because part III currently applies to trans people only for vocational training. 
I recognise that the new clause is not a holistic way of dealing with the problem of trans people because it does not provide for exceptions to be made, although I would argue that the need for exceptions is limited, given that exceptions already exist for the provision of separate sex facilities in respect of goods and services, as we heard from the hon. and learned Member for Redcar (Vera Baird). I understand that the Minister might not want to accept the new clause purely because it is not holistic enough to deal with the problem. However, it seeks to explore the way in which the Government seek to meet their obligations. 
The Minister will be aware that Council directive 2004/113/EC of 13 December 2004 implements 
''the principle of equal treatment between men and women in the access to and supply of goods and services''.
It requires protection to be provided for transgender people by 21 December 2007. My question is simple. Will the Government commit themselves to doing that, will they commit themselves to doing it by that deadline and, if so, how? Having failed to use the vehicle of the Bill, it is not clear whether they will be able to do so in the most appropriate manner by that deadline. It is a question of timing. 
There are three approaches that the Government could take. First, they could use this Equality Bill, but by rejecting the amendments tabled by my hon. Friend the Member for Romsey and myself, they have indicated that they do not wish to use the Bill, although I live in hope that before Report, the Government will have seen the wisdom and justice of doing so. The other two approaches are to use the single equality Act promised after the discrimination law review and the equalities law, or regulations under section 2(2)(a) of the European Communities Act 1972. As the Minister knows, the directive states that the provisions need to be brought in by 21 December 2007. In cases where there is no primary legislation, legislation exists under the European Communities Act for them to do that quite quickly. 
On the possibility of using the single equality Act, in the Committee's debate last Thursday, the Minister promised a Green Paper on discrimination law in the spring of 2006. We all know how long some seasons can last, given not just climate change, but Government deadlines for publication. The worry is that it might not be spring. However, assuming that it is spring—the Minister said a few moments ago in a semi-ironic way that spring can last a long time in relation to the publication of the discrimination law review—in the normal course of events, that might  lead to a White Paper, following consultation, around six to nine months later. That brings us, at the earliest, to late 2006, and a Bill perhaps six months after that. We are talking about legislation that is likely to enter Parliament in mid–2007. Because such a Bill will involve various arrangements that will have an impact on other people, there may be delays in bringing in the legislation, and that would be seen as good government and good regulation. 
The question is: if the Minister does not use new clause 17, can she be certain that the alternative—the single equality Act—will meet that 21 December 2007 deadline, which is only 107 weeks away? If she does not use the proposal in the new clause, the only alternative to meeting the deadline, other than the one that I have just described, is using the European Communities Act. As she will be aware, the problem is that the use of regulation would allow goods and services protection to extend only as far as the extent of the directive, and no further. It would not, for example, include education, which is a key issue for many transgender people who return to education following their change of gender, or the content of media and advertising, which are excluded under article 3(3) of the 2004 directive. Although the directive itself does not prevent Parliament from enacting more comprehensive provisions, use of the European Communities Act's regulation-making power reduces the scope. I do not believe—the Minister may agree, but I wait to see—that the use of the European Communities Act is a satisfactory alternative to bringing in this protection. I am seeking from her an indication of how she will meet the deadline if she does not use the Bill. If she cannot give that, my hon. Friends and I, and others, may wish to return to the matter on Report, to seek to draw her out further. I would be grateful for her response to my remarks.

Meg Munn: I understand why the hon. Gentleman continues to raise the matter, and I should like to reassure him that the Government support the intention that underpins his amendment. Indeed, we have already started the work that is needed to extend protection against discrimination for transsexual people to areas beyond the employment field. The hon. Gentleman has proposed that we can achieve our shared objective of ending discrimination against transsexual people by simply extending part III of the Sex Discrimination Act to cover gender re-assignment. Before I explain the reasons why we do not support the new clause, it would be helpful to set out what its effect would be. Part III makes discrimination lawful in the fields of education and the provision of goods, facilities and services in the management and disposal of premises. Provisions in the Bill will also bring the functions of public authorities within part III.
Part III contains a number of exceptions. Those are narrowly drawn and refer specifically to situations where it is clearly sensible that the principle of equal treatment between women and men is not an absolute requirement—at least, that was what was considered to be the case when the Sex Discrimination Act  became law in 1975. We are committed to providing that protection and a key strand of our work in the discrimination law review is to make discrimination against transsexual people unlawful. 
However, we must look at what that will mean in practice for transsexual people and all the parties to whom the law will extend. To do that, we need to consult on the issues faced by all who would be affected and hear views on our proposals. We are taking forward the necessary preparatory work for legal change through the discrimination law review. We will consult on our proposals in a Green Paper in the spring of 2006 and we want to hear the views of all interested parties on the proposals. We believe that this is the best way to ensure that transsexual people get legal protection against discrimination and that the law is clear and workable for those who will have responsibilities under it. On that basis, I hope that the hon. Gentleman is reassured.

Sandra Gidley: Given that the Minister seems keen to pursue the route of the Green Paper and consultation, what assurances can she give us that protection for transsexual people will be in place by the deadline of 21 December 2007? As my hon. Friend the Member for Oxford, West and Abingdon has already outlined, the time scales for the Green Paper and a possible Bill in 2007—at the earliest—mean that there will be a gap in provision. It seems that we are unlikely to meet those deadlines.

Meg Munn: We are aware of the deadline. We are considering the range of options and our overall aim is to provide comprehensive protection. At this stage it is not possible for me to say anything more than that, other than that we want to ensure that we get the issue right and that we have covered it properly. That is why, as I have said many times, the Bill was never intended to deal with a whole range of equality issues. The discrimination law review is enormously important and is considering matters in a detailed way. That is the correct way to proceed and I trust that hon. Members will be reassured on that basis.

Evan Harris: I see that the Minister was not keen to take an intervention before her last three words, but I hope that she might be able to give me an assurance. I wanted to ask her about something—it might be the fourth time I have mentioned this point. Will she assure us that she will implement protection for trans-people from discrimination in the provision of goods and services, in line with what the direction states—not just about goods and services—by the deadline of 21 December 2007? Is she able to give a categorical assurance that she will meet that deadline? It is a yes or no question. She is not rising to her feet. That is probably why she did not want to take my intervention, which shows that she is a consummate parliamentary performer, as we would expect.
The Minister has not given us the assurance that we required about the time scales. I want to put on record that I do not doubt her intention to provide this protection eventually. I am not seeking to take issue with that; the question is whether it can be done on time. The Bill is a vehicle that would enable us to guarantee doing that because it will be enacted before the deadline. 
Although I shall withdraw the motion in a moment, in the light of what the Minister said we may have to return to the matter on Report and ask the Government to think again. In the absence of the Minister's assurance that she can meet the deadline required, they might have to use this Bill to do so after all. Until that time, I beg to ask leave to withdraw the motion. 
Motion and clause, by leave, withdrawn. 
Question proposed, That the Chairman do report the Bill, as amended, to the House.

Meg Munn: I thank you, Mr. Gale, for your excellent chairing of the Committee, which enabled us to get through the Bill at a good pace, and on behalf of the Committee I thank your co-Chair, Mrs. Anderson.
I am grateful to my hon. Friend the Under-Secretary for his assistance, as he took the Committee through a significant part of the Bill. I am also grateful to Committee members from all parties for their contributions. In particular, I thank the hon. Members for Epping Forest and for Romsey for their well-informed comments and questions. Support was given to them by the hon. Members for Beaconsfield and for Oxford, West and Abingdon. 
I am also grateful to the Clerks, the attendants, the police and the Hansard staff, and I thank the staff of the Departments concerned for their work. I am pleased that we have been able to take forward our debates in such a constructive and positive way, and look forward to a similar tone of debate on Report. I hope that the Bill will be reported, as is appropriate.

Eleanor Laing: I echo the Minister's thanks to everyone involved in the background—that is, to the Clerks and the officials who worked on the Bill. I also thank you, Mr. Gale, and Mrs. Anderson for your incredible forbearance and patience in chairing this Committee. We did not discover consensus only yesterday; we have supported the general intention of the Bill since it was first debated in the previous Parliament, last April. Indeed, there have been no Divisions in this Committee, because we have managed to have proper discussion of a constructive nature on every single point that has come forward. Our proceedings have been constructive and pleasant, and I thank everyone in the Committee, particularly the hon. Member for Romsey, for that.
I pay particular homage to the Minister. This is her first Bill as a Minister, and she has taken us through it with courtesy and diligence. I am sure that every Committee member appreciates that. Nevertheless, despite the consensus and the fact that there were no Divisions, we reserve our position on the need to examine some of our concerns—particularly, of course, those about the use of taxpayers' money and there being too many regulations—on Report.

Sandra Gidley: I add my comments to those of the two previous speakers. I commend you, Mr. Gale, and your co-Chair for your vigorous chairing; I do not think I have ever heard so many recommendations that letters be written in a Committee. I would recommend that approach to other Chairs, because it seems on occasion to curtail unnecessary debate. I pay  tribute to the way in which our consideration of the Bill was arranged. It was particularly helpful that there were no knives, and we were able to have a fairly free-ranging discussion on every part of the Bill. I thank the Minister and the Whips for that.
I also pay tribute to the hon. Member for Epping Forest. On the whole, the Committee has been good-natured. There have been points of disagreement, but generally they have been about the use of public funds, an issue on which the hon. Lady is diligent—as are we all, although we perhaps have different priorities for spending that money. I also thank the Clerks, the police and the Hansard staff. 
Although our considerations have been consensual, I echo the thoughts of the hon. Lady: some points will be brought back again on Report, because although we had answers to our questions, opportunities are being missed under the Bill. It is a shame that some issues are being carried forward, always with good intent and, in some cases—but not in others—for the good reason that they are complex issues that need resolving. We will return to those points later.

Evan Harris: Before my hon. Friend sits down I wanted to mention that I have been struck by the promptness with which letters that were promised were written. I am sure that my hon. Friend would, like me, want to thank the ministerial team who must have had a hand in writing the Ministers' letters for the speed with which they did that, so that we could consider them in our work on the Bill.

Sandra Gidley: I wholeheartedly associate myself with my hon. Friend's comments.
Finally, it has been a matter of particular note that the gender balance of the Committee, on the Government Benches in particular, has been somewhat unbalanced. I wonder if our male colleagues object to being left out, for once.

Roger Gale: I must be going soft in my old age. Not only were the previous five minutes entirely out of order, but I allowed one hon. Member to raise a constituency matter in a wholly inappropriate context, and allowed the hon. Member for Oxford, West and Abingdon to intervene on a point of order, which is also completely out of order. While we are out of order, I thank the Committee for the courtesy and good humour with which it has conducted business. I know that Janet Anderson would want to express appreciation of the thanks that have been given, and to thank the Committee for the extremely amicable conduct of the business.
I thank the Officers of the House, also. We could not do the job that we are required to do, sometimes in difficult circumstances, without their assistance, and we are most grateful. It is slightly premature, but this will be my last chance to do it, so I wish all members of the Committee a happy Christmas and a highly politically consensual new year. [Interruption.] Don't go yet! We have not finished. 
Question put and agreed to. 
Bill, as amended, to be reported. 
Committee rose at thirteen minutes to Three o'clock.